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How restaurants should handle ‘A Day Without Immigrants’

Worker walkouts and protest are expected across the country Thursday and possibly Friday to stage “A Day Without Immigrants,” but legal experts warn that these events should be handled differently than the “Fight for $15” protests in recent years.

The Day Without Immigrants has largely been organized on social media by various advocacy groups opposed to the White House’s position on immigration. The protest’s stated goal is to demonstrate how important immigrants are in the U.S. economy.

Some restaurant operators across the country have pledged to remain closed Thursday in solidarity with their workers, and to allow them to participate in the protests.

But in a legal alert from law firm Fisher Phillips, which has a large hospitality practice, attorneys noted that these protests are not the same as the “Fight for $15” events over the past two years, which were considered protected activity because they were about workplace issues, specifically wage rates.

The National Labor Relations Act, or NLRA, only protects workers who engage in lawful concerted activity for purposes of mutual aid and protection, the report said.

Protests about broad-based government action, without specific workplace concerns, may not be protected under the NLRA, but Fisher Phillips urges employers to examine the issue more closely before making decisions about how to handle their worker absences.

Here is some advice from Fisher Phillips:

—Consult your legal counsel. “You should understand that this is a highly technical area of law involving subtle fact-sensitive distinctions between lawful and unlawful conduct, but with significant ramifications from a remedial standpoint,” the report said.

“Add to the mix the fact that the body of law governing this field is in a constant state of flux against a backdrop of an evolving regulatory landscape and you have the potential for a challenging compliance situation.”

—Refrain from immediately disciplining workers who don’t show up or walk out on the job.

“There is a detailed analysis to conduct to determine whether worker activity during protests is protected or not, but one of the key factors the National Labor Relations Board would look to is how often the protests reoccur,” the report said. “The more frequently your workers walk out, the more likely their actions are considered unprotected. One-time protests are often deemed protected, while the NLRB is less likely to condone additional bites at the apple.”

—Give workers a chance to explain. While the generalized nature of the Day Without Immigrants protest is unlikely to be protected by the NLRA, each employer’s situation will be different and each employee’s articulated rationale for protesting could be as well, the report said.

If employees refer to the protests as the basis for their absence, “you may want to provide them with the opportunity to explain the circumstances motivating their desire to take part before going further,” the report said.

If they say they missed work because of “protests,” that may not be enough for them to receive protection under the NLRA. But if they tie the protests to working conditions, risk-adverse employers may want to give those workers the benefit of the doubt.

If workers walk out without prior approval, instruct managers to engage with workers — preferably with a witness present — to ask them where they are going or whether they’re leaving their job despite being scheduled to work.

If they indicate a protest, offer them the option of discussing their concerns with management during a work break or at the end of their shift. If they refuse, inquire about the reason for the protest and listen for any connection to employment terms or conditions before making a decision about how to respond.

If you conclude the walkout is protected, make sure managers know not to threaten discipline.

“You can inform them that they will not be paid for the time they spend off the job and can request they clock out before they leave, but you shouldn’t force them to clock out if they walk out anyway,” the attorneys said.

—Don’t allow slowdowns. Some workers might not walk off the job or take a day off, but they might engage in a workplace slowdown. But employees don’t have the right to stop working and simply stand in their work area as a form of protest.

Employers can require them to return to work or leave the premises to conduct their protest.

—Tread lightly regarding leaflets and banners. Generally, handing out leaflets or handbills in non-working areas is acceptable and considered a protected form of speech, so long as it’s done without unlawful behavior. Visible banners are also largely protected, unless confrontational or threatening in some way.

If they do enter company premises or disrupt customer service, politely ask them to leave and explain why, with a witness present. Don’t raise your voice or engage physically. It’s best to avoid a “Facebook moment” that could be recorded, the report said. Let them know if you call the authorities.

—Know your limitations. Don’t spy on protestors gathering in public spaces or photograph or video their protests, record names of participants or do anything that might imply punishment for their participation.

And think twice (and consult legal counsel) before disciplining a worker for what they post on social media in light of the protests. The NLRB has consistently upheld an employee’s right to complain about the workplace or organize protests on social media.